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On February 9, 2015, I wrote about the upcoming “Quickie Elections” for unions. The National Labor Relations Board (NLRB) issued 733 pages of rules, which are to take effect on April 14, 2015. Although you may have heard that Congress passed a resolution setting aside these rules, President Obama vetoed that resolution on March 31st. To recap some of the highlights of the rules:

Within 11 days of the date a petition is filed, the NRLB can conduct union elections.

Employers will be required to provide available personal e-mail addresses and telephone numbers for all eligible voters.

Pre-election hearings will be limited only to determine whether an election should take place. In the past, common disputes over voter eligibility and inclusion in the voting unit were heard prior to elections. Now, they will usually be deferred until after the election when they will only be considered if they would have had an impact on the election results. This change will reduce the time for elections from the approximate 6 week time frame to less than 3 weeks.

Post-Hearing Briefs: Although all parties will be allowed to present their arguments at the hearing, the NLRB will have the ultimate discretion to decide whether post-hearing briefs will even be allowed.

NLRB’s General counsel issued a 36-page guidance memorandum on April 6, which helps understand how the NLRB will interpret the new rules.

Employers should be aware of the possibility of employees engaging in protected concerted activity in an attempt to unionize. This could happen in companies big and small, in Birmingham, around the state and around the country. Employees who engage in such activity are protected by the National Labor Relations Act, and employers are limited in how they can respond legally to union organizing activity. In the event an employer learns that there is a push to unionize among the employees, the employer should contact their legal counsel immediately. Employers may also decide to take affirmative steps in an attempt to remain union free. These steps include, but are not limited to, ensuring that the employees have a positive attitude towards the employer, training management and supervisors to fairly treat their employees, and to evaluate their compensation package (salary + benefits) to be competitive in the marketplace.

An example of what can go wrong in such a scenario is set forth in a recent NLRB ruling upholding an administrative judge’s order that Herman Perez was wrongfully discharged from his job at Pier Sixty in New York City. Pier Sixty is a catering company, and Perez was a long-term employee who worked as a server. At an event that Perez was working, one of his supervisors chastised Perez and two co-workers in a “disrespectful” manner, using a harsh tone and waving his arms. Apparently, this supervisor, as well as other management, had a history of treating the employees “disrespectfully” on a regular basis. This treatment led to an interest in the employees organizing a union. There was a successful organizing campaign, with elections taking place 2 days after Perez was terminated. The reason for termination? After the confrontation with his supervisor, Perez went on a break, and using his personal phone, outside the banquet hall, posted a message on his Facebook page, referring to his supervisor as a “NASTY M……F…er”, a “LOSER!!!!”, and some additional profanity before ending the post by saying “Vote YES for the UNION!!!!!!” Pier Sixty terminated Perez for a violation of its anti-obscenity policy. Two charges were filed with the NLRB: one by Perez for his termination and one on behalf of the Union as the result of employees being threatened with the loss of jobs and benefits if the Union was approved. The Administrative Law Judge found in favor of both Perez and the Union. The NLRB panel upheld the finding of the Administrative Law Judge, finding in part that the obscene language policy, from 2005 to the termination of Perez in 2011, had resulted in only 5 written warnings, and no one had been discharged based on the policy. The panel found that the use of the obscene language by Perez was not “qualitatively different from profanity regularly tolerated by [Pier Sixty]…” and “the overwhelming evidence establishes that, while distasteful, [Pier Sixty] tolerated the widespread us of profanity in the workplace…” including the words used by Perez.

Practice pointers. As April 14th is almost here, employers need to be cognizant of the push that will occur by many unions, in many industries, to unionize the workforce. Steps can be taken to oppose unionization, but must be done in compliance with the NLRA. Employers must be ready to immediately activate a counter-organizing campaign, which, hopefully, has already been crafted. As evidenced by the Perez case, disciplinary action, up to and including termination, becomes increasingly risky, in the eyes of the NLRB, the closer the election becomes. Management should be educated on the signs of a union organizing campaign, and know what to do should one actually begin. If an employer has instituted policies concerning anti-obscenity, anti-bullying and social media, among others, they must be enforced consistently, and at all levels: front line workers, supervisors and management. Inconsistent enforcement of policies may result in serious adverse consequences for employers.

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